By Lehlohonolo Lehana.
The Nkabinde Commission of Inquiry was again delayed on Monday after it emerged that there were still challenges for outgoing National Prosecuting Authority (NPA) boss Shamila Batohi in securing her legal representation.
The Nkabinde inquiry is looking into Gauteng director of public prosecutions Andrew Chauke’s fitness to hold office.
The inquiry was set up by President Cyril Ramaphosa after Batohi referred Chauke’s case to him, alleging the Gauteng director of public prosecutions had protected high-profile people and made politically-motivated prosecution choices.
Batohi reportedly questioned Chauke on his apparent reluctance to prosecute former president Jacob Zuma’s son, Duduzane, for culpable homicide after he crashed his Porsche into a taxi in 2014.
The inquiry resumed after it was adjourned in December, when Batohi, while under cross-examination by Chauke’s legal team, walked out of the commission.
On Monday evidence leader advocate David Mohlamonyane told the panel that the past Friday the evidence team had received communication from Batohi that her stance remained unchanged.
“She has not yet received the legal counsel that she sought,” Mohlamonyane said, adding that Batohi had requested the appointment of both senior and junior counsel from the Office of the State Attorney but the request was rejected.
The acting solicitor-general had advised Batohi to approach the minister of justice and constitutional development. Justice Minister Mmamoloko Kubayi had responded that because the National Prosecuting Authority (NPA) had a legal team, Batohi should use those services.
Mohlamonyane said Batohi had then expected the NPA legal team to advise her. The NPA subsequently wrote to the inquiry, requesting permission to consult Batohi.
“To date advocate Batohi says there was no response from the panel and, therefore, she will not be able to continue with her evidence until and unless she receives legal counsel,” he said.
Panel chairperson Judge Bess Nkabinde summarised Batohi’s position: “I suppose what you are saying in a nutshell is that advocate Batohi will not resume where she ended last year, subject to her being afforded what she asked for.”
Nkabinde asked whether the evidence team had discussed a way forward if Batohi did not return to the witness stand. Mohlamonyane said the team was devising a plan to proceed with the inquiry without her testimony.
Nkabinde indicated that the panel had not been informed of the nature of legal advice Batohi was requesting.
Advocate Tembeka Ngcukaitobi, for Chauke, said the panel should not forget that Batohi had walked out of proceedings without its permission.
“The panel should not create the impression that you can reward the delinquent behaviour of a witness who walks out and then makes an application while outside,” he said, noting that while Batohi was present on Monday after walking out in December, she had decided not to give evidence.
“In both of those instances those were unilateral decisions which did not have the permission of the panel,” he said. “The context must not be forgotten, that we are dealing with a witness who has taken the law into her own hands.”
He said Batohi’s decision had negatively affected his client who was on suspension and deserved speedy deliberation on the allegations.
Advocate Themba Skosana, who is part of the evidence team, said a legal code of practice prevented the team from consulting Batohi while she remained under cross-examination.
“We are saying this at this point in time that advocate Batohi has indicated her unwillingness to proceed without having attained legal advice, “Skosana said, adding that Batohi needed to clarify her legal rights and interests in light of how her cross-examination had unfolded.
“Once duly advised she will then make that call about continuing or not continuing with her testimony,” he said.
Skosana said if Batohi ultimately refused to continue, the evidence leaders had the power to subpoena her. He said the question of whether Batohi would be permitted to return to the witness stand by Chauke’s legal team would be considered once she decided whether she was returning.
Judge Nkabinde questioned whether he could not in the meantime call witnesses pertaining to the second leg of the inquiry, which involves former police crime intelligence boss Lieutenant-General Richard Mdluli.
It however, emerged that the witnesses in the Mdluli matter have not yet been consulted. In fact, the inquiry was told, there is no other witness ready to testify at this stage. This prompted Judge Nkabinde to remarked that it seems very little has been done to secure the evidence of witnesses.
Judge Nkabinde said the request for a postponement until next Monday could not be granted. She granted a postponement until Thursday.